The Queen (on the application of MR) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] EWHC 469 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4783/2015 |
| Date | 10 March 2017 |
[2017] EWHC 469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Bean
AND
The Honourable Mr Justice Supperstone
Case No: CO/4783/2015
Martin Chamberlain QC and Tom Hickman (instructed by ITN Solicitors) for the Claimant
Nathalie Lieven QC and David Blundell (instructed by Government Legal Department) for the Defendant
Angus McCullough QC and Shaheen Rahman (instructed by Special Advocates Support Office) appeared as special advocates
Hearing dates: 1 st and 2 nd December 2016
Approved Judgment
This is the judgment of the Court to which we have both contributed. Like R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] 2 WLR 583 it concerns the use of the Royal Prerogative. But there the resemblance ends.
The Claimant is a British national. He has lived in the UK since the age of two. He acknowledges in his witness statement that in the period from 2008 to early 2011 he had some involvement with two organisations now proscribed under the Terrorism Act 2000, Al Muhajiroun ("ALM") and Muslims Against Crusades ("MAC"); he describes MAC as having been affiliated to ALM. He also accepts that he was "dubbed the spokesperson for MAC" and that he made various public appearances in association with MAC under the pseudonym Abu Rayah. He states that "while I remain religious, my views are mainstream and moderate. I regret my past association and the publicity I had engaged in."
From September 2011 to October 2012 the Claimant worked in the National Health Service. After this he had difficulty in finding a job. He states that at the end of 2013 he decided to try to set up his own business; and that on the advice of a friend who had a wholesale confectionery business he explored options in that field.
The Claimant travelled to Turkey on 11 February 2014. He claims this was to investigate the possibility of setting up a confectionery business. He accepts that he did not establish any companies while he was there. Rather, he states, after a two week family holiday, he used the trip to research the market.
The Claimant had entered Turkey on a visa valid for 90 days. On 26 June 2014, the Claimant was arrested in Turkey for overstaying his visa. He opted to be removed to Sweden rather than to the UK. After a few days in Sweden, he travelled to Egypt, where he states that he was married to a British woman (his previous marriage having broken down while he was in Turkey). He and his new wife then went to Greece, and from there drove to Bulgaria.
On 14 November 2014, the Claimant was deported from Bulgaria on national security grounds. He was advised by the British Consulate that he had been banned from Turkey for 10 years. On his return to the UK he was interviewed at the airport under Schedule 7 to the Terrorism Act 2000.
On 9 February 2015, the Claimant travelled to Prague. He states that this was to investigate the possibility of investing in a business there. On his return to the UK he was again interviewed under Schedule 7.
On 18 March 2015, he travelled to Warsaw. He states that this was to inspect potential sites for storage, and potential companies to export goods to expand the business. On his return, he was served by the Police with a letter from HM Passport Office dated 19 March 2015, which cancelled his passport. It stated, so far as is relevant:
"There is no entitlement to a passport. The decision to issue, withdraw or refuse to issue a British passport is a matter for the Secretary of State for the Home Department (the Home Secretary). On behalf of the Home Secretary, the Minister of State for Immigration and Security considers that it is not in the public interest that you should hold a passport.
You are a British national who is involved in terrorism-related activity. It is assessed that you are likely to travel overseas in future in order to engage in terrorism-related activity. You were deported from Bulgaria to the UK on national security grounds in November 2014. It is assessed that these activities would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities, actual or suspected, are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest.
The passport remains the property of the Crown and Her Majesty's Passport Office requests that you return the passport to the police officer delivering the letter.
It is open to you to apply for a passport at a later date. The issue of a passport will be determined on the circumstances at the time of any application. If you require any further information, please contact Her Majesty's Passport Office, quoting the above reference number."
A letter before claim was served on 1 June 2015. After some preliminary correspondence the Defendant's solicitor wrote on 24 June 2015 to say that the Defendant was carrying out a review of the decision to cancel the Claimant's passport.
The result of that review, communicated by letter dated 27 July 2015, was that HM Passport Office upheld the decision to cancel the Claimant's passport, for the reasons previously given. This review decision was taken not by a Minister but by Mr X of the Counter Terrorism Pursue Unit in the Office for Security and Counter Terrorism within the Home Office.
On 5 October 2015 these proceedings were issued seeking judicial review of both the March 2015 and July 2015 decisions.
On 24 March 2016 Cranston J gave directions in the case. One of these, made by consent of both parties, was an order pursuant to section 6(2) of the Justice and Security Act 2013. Special advocates were duly appointed. Part of the hearing before us was conducted under the closed material procedure provided for under the 2013 Act and Part 82 of the Civil Procedure Rules, and is the subject of a separate, closed, judgment. Cranston J also ordered by consent that there was to be a "rolled-up" hearing before a Divisional Court. We grant permission for judicial review.
On 29 July 2016 a document containing the gist of the Defendant's case was served on the Claimant's solicitors and is appended to this judgment.
HMG Policy on the Issuing, Withdrawal or Refusal of Passports
A Written Ministerial Statement (referred to as "the WMS" or "the Passport Policy") laid before both Houses of Parliament on 25 th April 2013 states as follows:-
"The Secretary of State for the Home Department (Theresa May): The British passport is a secure document issued in accordance with international standards set by the International Civil Aviation Organisation. The British passport achieves a very high standard of security to protect the identity of the individual, to enable the freedom of travel for British citizens and to contribute to public protection in the United Kingdom and overseas.
There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative.
This Written Ministerial Statement updates previous statements made to Parliament from time to time on the exercise of the Royal Prerogative and sets out the circumstances under which a passport can be issued, withdrawn, or refused. It redefines the public interest criteria to refuse or withdraw a passport.
A decision to refuse or withdraw a passport must be necessary and proportionate. The decision to withdraw or refuse a passport and the reason for that decision will be conveyed to the applicant or passport holder. The disclosure of information used to determine such a decision will be subject to the individual circumstances of the case.
The decision to refuse or to withdraw a passport under the public interest criteria will be used only sparingly. The exercise of this criteria will be subject to careful consideration of a person's past, present or proposed activities.
For example, passport facilities may be refused to or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity.
This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world.
Operational responsibility for the application of the criteria for issuance or refusal is a matter for the Identity and Passport Service (IPS) acting on behalf of the Home Secretary. The criteria under which IPS can issue, withdraw or refuse a passport is set out below.
Passports are issued when the Home Secretary is satisfied as to:
i the identity of an applicant; and
ii the British nationality of applicants, in accordance with relevant nationality legislation; and
iii there being no other reasons (as set out below) for refusing a passport. IPS may make any checks necessary to ensure that the applicant is entitled to a British passport.
A passport application may be refused or an existing passport may be withdrawn. These are the persons who may be refused a British passport or who may have their existing passport withdrawn:
[…]
iv A person may be prevented from benefitting from the possession of a passport if the Home...
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